16 March 2017

Status ‘Strategic Investor'

Kalo & Associates


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Founded by Perparim Kalo in 1994 KALO & ASSOCIATES has been in the forefront of legal services in Albania and Kosovo in representing prominent business organizations and IFIs, including many Fortune 500. The Firm enjoys international reputation and is “best friend” to many international law firms and IFI-s, development agencies and embassies.
After 22 years of the enactment of the Foreign Investment law in 1993, as amended in 2009, a new law on strategic sectors and strategic investments came into picture.
Albania Government, Public Sector
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After 22 years of the enactment of the Foreign Investment law in 1993, as amended in 2009, a new law on strategic sectors and strategic investments came into picture. The idea was how to make big investors happy, how to attract them through a scheme of assistance, rather than provide incentives, as our neighbors are doing. So, in other words, the law 'On strategic investments' provides the procedure of application for obtaining the status 'Strategic investors', which would give them benefits in the first phase of their investment through accelerated procedures of issue of licenses and permits and also through providing additional public assets for their investment needs. The approval of the status would give to the strategic investor a) normal assistance and b) special assistance. The sectors the law selects and defines as 'strategic' are, more or less, those declared as sectors of priority in the program of the Government. More specifically, sectors investors can obtain the status "strategic' from are: energy and mining, transport, electronic communications, infrastructure and urban waste, tourism facilities, large agriculture farms and fishing, technological and economic development zones, areas having priority. Alternatively, any intended investment over 100 Mio EUR, regardless of the sector is similarly eligible to benefit the status.

The application should be accompanied by a set of documents including the business plan; financial sources; description of activities; timelines for each phase; social, economic and strategic impact assessment of the project; feasibility study; employment rate; list of all measures, incentives and supporting services that the investor requires from the Albanian Government; and several statements regarding the good standing of the applicant. The applicant shall also pay some tariffs for processing of the application!

It appears that there have been only four investors to obtain the status 'Strategic'; their investment altogether being some 100 Mio EUR. Other 14 applications are in the queue for being processed. If you see the list their investments are in the hotel industry, dairy or agro-business, which normally are classified as small businesses. In 2010 an amendment to the Foreign Investment law was enacted giving foreign investors (investing 10 Mio EUR and more) a special protection in case of property disputes (for properties over which the investor had obtained property rights). More specifically, the amendment said the Government would step in and deal with third parties' claims thus releasing the foreign investor from any obligations in respect of that claim. That amendment was abrogated and now we hear is being reinstated again.

In my experience as a lawyer assisting strategic investors from 1994 to date the strategic investors do not need the status 'Strategic' as an ornament, a medal. What they really need are guarantees that they will be investing quietly and peacefully; that they will be able to enforce the contracts, whether with government or private parties; that they will not be 'threatened' by local entrepreneurs, who in some cases try to kick them out of the sector, or even of the country; that they will have the certainty that their investment will be secure and will not face and suffer surprises; that they will be treated fairly by the administration and, finally, that they can find their rights in judicial processes, if that remedy is necessary. So, these could be the areas of a new amendment that AIDA is discussing and working on nowadays.

Perhaps it is time to reconsider the definition of a real strategic investor as we believe the meaning of a Strategic Investor should be more significant than it is under the current law. As well, incentives that should be given to that category of investors ought to be more rewarding. It is also time to reconsider and activate the 1 EURO incentive, for which we do not hear anything.

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